Language of document : ECLI:EU:T:2016:438

ORDER OF THE GENERAL COURT (Fourth Chamber)

14 July 2016 (*)

(Action for annulment — Action for compensation — Decisions adopted by the Governing Council of the ECB — Provision of emergency liquidity assistance to Greek banks — Ceiling — Lack of direct concern — Inadmissibility — Infringement of procedural requirements)

In Case T‑368/15,

Alcimos Consulting SMPC, established in Athens (Greece), represented by F. Rodolaki, lawyer,

applicant,

v

European Central Bank (ECB), represented by K. Laurinavičius and M. Szablewska, acting as Agents, assisted by H.-G. Kamann, lawyer,

defendant,

APPLICATION, first, under Article 263 TFEU, for annulment of the decision of the Governing Council of the ECB of 28 June 2015 by which it was decided to maintain the ceiling to the provision of emergency liquidity assistance to Greek banks at the level decided on 26 June 2015 and for annulment of the decision of the Governing Council of the ECB of 6 July 2015 by which it was decided to maintain that ceiling at that same level and to adjust the haircuts on collateral accepted by the Bank of Greece in that respect, and application, secondly, under Article 268 TFEU, for compensation for the damage which the applicant allegedly suffered as a result of those decisions,

THE GENERAL COURT (Fourth Chamber),

composed of M. Prek, President, I. Labucka (Rapporteur) and V. Kreuschitz, Judges,

Registrar: E. Coulon,

makes the following

Order

 Subject-matter of the proceedings and background to the dispute

1        The subject-matter of the action is, first, an application for annulment of the decision of the Governing Council of the European Central Bank (ECB) of 28 June 2015 by which it was decided to maintain the ceiling to the provision of emergency liquidity assistance to Greek banks at the level decided on 26 June 2015 and for annulment of the decision of that Governing Council of 6 July 2015 by which it was decided to maintain that ceiling at that same level and to adjust the haircuts on collateral accepted by the Bank of Greece in that respect (taken together, ‘the contested decisions’), and, secondly, an application for compensation for the damage suffered as a result of the contested decisions, in the amount of EUR 1.

2        By the contested decisions, the ECB left the ceiling to the provision of emergency liquidity assistance (‘ELA’) unchanged, despite requests by the Bank of Greece, which, according to press reports, had submitted a request for an increase of the ceiling to ELA by EUR 6 billion, from a previous level of EUR 89 billion.

3        According to the applicant, Alcimos Consulting SMPC, the contested decisions resulted in the imposition of a bank holiday and capital controls in Greece (‘the measures at issue’), by virtue of an ‘act of legislative content’ published in the Government Gazette of the Hellenic Republic on 28 June 2015.

4        By decision of the Governing Council of the ECB of 16 July 2015 (‘the decision of 16 July 2015’), it was decided not to object to an increase in the ELA ceiling.

 Procedure and forms of order sought

5        By application lodged at the Court Registry on 10 July 2015, the applicant brought the present action.

6        The applicant claims that the Court should:

–        declare the action admissible;

–        annul the contested decisions;

–        order the ECB to pay to it the sum of EUR 1 in damages.

7        By separate document lodged at the Court Registry on the same day, the applicant made an application for interim measures, in which it claimed that the President of the General Court should suspend the contested decisions until the final judgment is delivered in the main proceedings.

8        By separate document lodged at the Court Registry on the same day, the applicant made a request for an expedited procedure pursuant to Articles 151(1) and 152 of the Rules of Procedure of the General Court.

9        By order of 1 September 2015 in Alcimos Consulting v ECB (T‑368/15 R, not published, EU:T:2015:584), the application for interim measures made by the applicant was dismissed for want of urgency.

10      By letter lodged at the Court Registry on 10 September 2015, the ECB submitted its observations on the applicant’s request for an expedited procedure.

11      By way of measures of organisation of procedure, the applicant was requested to submit to the Court its observations on the impact of the decision of 16 July 2015 on the purpose of the action in the present case.

12      By decision of the Fourth Chamber of the General Court of 6 October 2015, the request to adjudicate under an expedited procedure was rejected.

13      The applicant was requested to submit its observations on the ECB’s letter of 10 September 2015.

14      By separate document lodged at the Court Registry on 6 November 2015, the ECB submitted that the action was inadmissible on the basis of Article 130(1) and (2) of the Rules of Procedure.

15      In its plea of inadmissibility, the ECB claims that the Court should:

–        dismiss the action as inadmissible;

–        order the applicant to pay the costs.

16      By letter lodged at the Court Registry on 7 February 2016, the applicant submitted to the Court its observations on the impact of the decision of 16 July 2015 and on the ECB’s plea of inadmissibility.

17      In its observations on the plea of inadmissibility, the applicant claims that the Court should declare the action admissible and open the oral part of the procedure.

 Law

18      Pursuant to Article 130(1) of the Rules of Procedure, the Court may, if a party so requests, rule on the plea of inadmissibility without considering the merits of the case.

19      Moreover, under Article 126 of the Rules of Procedure, where the action is manifestly inadmissible or manifestly lacking any foundation in law, the Court may at any time decide to give a decision by reasoned order without taking further steps in the proceedings.

20      In the present case, the Court considers that it has sufficient information from the documents in the case file and that there is no need to take further steps in the proceedings.

 The claim for annulment

21      In support of its plea of inadmissibility, the ECB submits, principally and in essence, that, since the contested decisions were repealed by the decision of 16 July 2015, the applicant retains no interest in the annulment of the contested decisions, with the result that the application for annulment must be held inadmissible on the ground that it has become devoid of purpose. The ECB maintains that, consequently, the applicant’s interest in bringing proceedings, assuming that it existed before the contested decisions were repealed, has ceased to exist.

22      Even though the applicant implicitly admits that the decision of 16 July 2015 repealed the contested decisions, the ECB’s line of argument cannot succeed.

23      It is true that an applicant’s interest in bringing proceedings and the purpose of the action must persist until the final decision, failing which there will be no need to adjudicate, which presupposes that the action must be liable, if successful, to procure an advantage for the party bringing it. However, the repeal of the contested act, effected after the bringing of the action, does not in itself mean that the Courts of the European Union must declare that there is no need to adjudicate for lack of purpose or for lack of interest in bringing proceedings at the date of the delivery of the judgment, in particular if such a repeal does not leave the applicant with the result he desires and give him complete satisfaction (order of 25 June 2014 in Accorinti and Others v ECB, T‑224/12, not published, EU:T:2014:611, paragraph 68 and the case-law cited).

24      Without prejudice to the assessment of the scope of the contested decisions with regard to the applicant, it is not disputed that those decisions produced legally binding effects until their repeal by the decision of 16 July 2015.

25      Accordingly, assuming that the legal effects of the contested decisions could have adversely affected the rights relied on by the applicant and irrespective of whether the applicant established an interest in bringing proceedings when it brought its action, it cannot be regarded as having lost its interest in having the contested decisions annulled ex tunc on the sole ground of their subsequent repeal. Only such an annulment would eliminate those decisions with retroactive effect from the European Union legal order as if they had never existed (see, to that effect, order of 25 June 2014 in Accorinti and Others v ECB, T‑224/12, not published, EU:T:2014:611, paragraph 69 and the case-law cited).

26      The ECB’s argument that there is no need to adjudicate on the application for annulment of the contested decisions must therefore be rejected.

27      In support of its plea of inadmissibility, the ECB submits, in the alternative, that the conditions of the fourth paragraph of Article 263 TFEU are not, in any event, fulfilled in the present case.

28      According to the ECB, the contested decisions, which were addressed to the Bank of Greece, were not of either direct or individual concern to the applicant and did not constitute regulatory acts which do not entail implementing measures, within the meaning of the fourth paragraph of Article 263 TFEU. 

29      In that regard, it must be borne in mind at the outset that the criterion of direct concern requires, first, that the contested measure must affect the legal situation of the applicant and, secondly, that it must leave no discretion to the addressees of that measure who are entrusted with the task of implementing it, that implementation being purely automatic and resulting from EU rules without the application of other intermediate rules (see order of 25 June 2014 in Accorinti and Others v ECB, T‑224/12, not published, EU:T:2014:611, paragraph 72 and the case-law cited).

30      In the present case, the applicant submits that the contested decisions are of direct concern to it on account of the causal link which exists between those decisions and the loss or damage suffered, inasmuch as those decisions did not leave the Hellenic Republic with any discretion with regard to their implementation since the measures at issue were direct and inescapable consequences of the contested decisions.

31      That argument is not convincing.

32      It must be stated, first, that the measures at issue, namely the imposition of a bank holiday and capital controls in Greece, were the result of the Greek authorities’ choice as to the means which they considered appropriate for dealing with an emergency and cannot be regarded as having been directly imposed by the contested decisions.

33      Secondly, although it is true that, from a temporal viewpoint, the measures at issue were adopted after the contested decisions, it cannot be deduced from that fact alone that the Greek authorities had no discretion as to the choice of measures to alleviate the emergency situation which the Greek economy was in. That the measures at issue were not the automatic consequence of the contested decisions is apparent, in that regard, from the fact that the Greek authorities maintained those measures after the contested decisions had been repealed, which the applicant does not dispute.

34      As the ECB submits, a point which the applicant also does not dispute, the measures at issue were not abrogated immediately after the decision of 16 July 2015 because they were abrogated only subsequently and progressively.

35      It is necessarily apparent from that that, if the decision of 16 July 2015 could not abrogate the measures at issue by repealing the contested decisions, the contested decisions cannot have introduced those measures.

36      Consequently, it must be held that the measures at issue were introduced not by the contested decisions, but by the Greek authorities, with the result that the implementation of those measures is not purely automatic and did not result from EU rules without the application of other intermediate rules.

37      That assessment cannot be called into question by the applicant’s argument that the contested decisions left the Greek authorities with only a purely hypothetical discretion.

38      By maintaining the ELA ceiling, the contested decisions did not in any way impose the measures at issue, with the result that the Greek authorities were fully at liberty to take measures other than those measures, such as, for example and rather than the imposition of Greek bank holidays, withdrawal limits or limits to movements abroad from accounts held with Greek banks.

39      Accordingly, the condition that the contested decisions must be of direct concern to the applicant is manifestly not satisfied.

40      Consequently, the claim for annulment must be dismissed as inadmissible.

 The claim for compensation

41      In support of its plea of inadmissibility, the ECB submits, principally, that the claim for compensation is inadmissible inasmuch as the application does not meet the requirements of Article 21 of the Statute of the Court of Justice of the European Union and of Article 76 of the Rules of Procedure of the General Court, since the application does not make even a prima facie case to substantiate a sufficiently serious breach or the existence of damage and of any direct causal link between the alleged damage and the contested decisions. The applicant disputes those claims and submits that it has satisfied all the procedural requirements.

42      In that regard, it must be borne in mind that, pursuant to the first paragraph of Article 21 of the Statute of the Court of Justice of the European Union, read in conjunction with the first paragraph of Article 53 thereof, and to Article 76(d) of the Rules of Procedure of the General Court, all applications must set out the subject matter of the dispute and a summary of the pleas in law on which they are based. That information must be sufficiently clear and precise to enable the defendant to prepare its defence and the Court to rule on the action, if necessary without any further information. In order to guarantee legal certainty and the sound administration of justice it is necessary, in order for an action to be admissible, that the essential matters of law and fact relied on are stated, at least in summary form, coherently and intelligibly in the application itself. More specifically, in order to satisfy those requirements, an application for compensation for damage said to have been caused by an EU institution must indicate the evidence from which the conduct which the applicant alleges against the institution can be identified, the reasons why the applicant considers that there is a causal link between the conduct and the damage which it claims to have sustained, and the nature and extent of that damage (see order of 5 October 2015 in Kafetzakis and Others v Parliament and Others, T‑38/14, not published, EU:T:2015:785, paragraph 30 and the case-law cited, and judgment of 7 October 2015 in Accorinti and Others v ECB, T‑79/13, EU:T:2015:756, paragraph 53 and the case-law cited).

43      In the present case, it must be borne in mind that, although, in the application, the applicant submits that it suffered ‘serious and irreparable damage’, first, because it was not able to use its funds in the amount of EUR 10 582.84 for transactions outside of Greece and, secondly, because it was not able to act as the sponsor for an application seeking the approval of the United Kingdom authorities of a prospectus pertaining to an initial public offering of up to EUR 500 million for an investment vehicle which would invest in Greek residential property; as the creator of a lending platform for mortgages, auto finance and factoring; and as the buyer of a number of receivables portfolios, the third head of claim confines itself to claiming damages in the amount of only one euro. Such a definition of the alleged damage does not satisfy the requirements of clarity and precision in the presentation of the nature and extent of the damage put forward, as laid down by Article 76(d) of the Rules of Procedure, so as to enable the ECB to prepare its defence and the Court to rule on the claim for damages, but is rather based on an inherently contradictory argument. The applicant’s claim that it suffered ‘serious and irreparable’ material damage is manifestly contradicted by its assessment of that damage as corresponding to only EUR 1. That contradiction is all the more obvious because the applicant is not claiming symbolic compensation for non-material damage, but compensation for ‘serious and irreparable’ material damage based on the loss of the abovementioned alleged financial opportunities. However, in so far as the applicant invokes such material damage, it has failed to put forward sufficiently clear and precise information to enable the ECB and the Court to assess that damage. The application does not therefore satisfy the formal requirements regarding at least some description of the material damage invoked.

44      The applicant cannot invalidate that assessment by subsequently submitting, in its observations on the plea of inadmissibility, that it sustained damage in excess of EUR 1 due to the contested decisions because a company must sustain such a minimum degree of damage if it is not able to freely use funds for transactions outside of Greece. Even if the Court were able to take that later detail into account for the purposes of assessing the admissibility of the application in the light of Article 76(d) of the Rules of Procedure, the fact remains that the applicant has still not submitted the minimum information to explain the nature and extent of the alleged ‘serious and irreparable’ material damage invoked.

45      In the light of all of those grounds, the claim for compensation must also be dismissed as inadmissible and, consequently, the action must be dismissed in its entirety.

46      That finding does not constitute infringement of Article 47 of the Charter of Fundamental Rights of the European Union as the applicant claims. It must be pointed out that that article is not intended to change the system of judicial review laid down by the Treaties, and particularly the rules relating to the admissibility of direct actions brought before the Courts of the European Union, as is apparent also from the Explanation on Article 47 of the Charter, which must, in accordance with the third subparagraph of Article 6(1) TEU and Article 52(7) of the Charter of Fundamental Rights, be taken into consideration for the interpretation of the Charter. Accordingly, the conditions of admissibility of an action must be interpreted in the light of the fundamental right to effective judicial protection, but such an interpretation cannot have the effect of setting aside the conditions expressly laid down in the Treaty or the Rules of Procedure (see, to that effect, judgment of 3 October 2013 in Inuit Tapiriit Kanatami and Others v Parliament and Council, C‑583/11 P, ECR, EU:C:2013:625, paragraphs 97 and 98 and the case-law cited).

 Costs

47      Under Article 134(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the applicant has been unsuccessful, it must be ordered to pay the costs, in accordance with the form of order sought by the ECB.

On those grounds,

THE GENERAL COURT (Fourth Chamber)

hereby orders:

1.      The action is dismissed as inadmissible.

2.      Alcimos Consulting SMPC shall pay the costs.

Luxembourg, 14 July 2016.

E. Coulon

 

      M. Prek

Registrar

 

      President


* Language of the case: English.